A selection of weekly articles by top Bahamian commentators.

June 03, 2009

On Compulsory Licensing and Judicial Independence in the Bahamas

by Larry Smith

Maurice Glinton and the Accountability of JudgesFreeport lawyer Maurice Glinton told members of the Nassau Institute last week that freedom in the Bahamas was threatened by judges that are politically compliant, unaccountable to the public, and acquiescent in their own abuse.

Glinton has degrees in law, economics and international relations, and has written extensively on constitutional issues. He is best known for suing the government In 2003 (with fellow lawyer Leandra Esfakis) over measures that parliament enacted eight years ago affecting the confidentiality of lawyer-client relations. That action was subsequently taken over by the Bar Council and remains in limbo.

According to Glinton, the judiciary is as important to good governance as are the legislative and executive branches, and "If our judicial system cannot carry out its role that is reason for concern that the government is not performing with the public interest in mind, which puts liberty and commerce at risk."

But judicial failure may also reflect the "misplaced loyalties" of judges themselves, he said. As the wielders of power they must be fully accountable. And he dismissed claims that judges are not politically influenced as "weak protestations in the face of the obvious". In his view, one of the chief reasons for the lack of judicial independence in the Bahamas is the process by which judges are recruited.

"I know more about judges in the US that I do about those in the Bahamas, who are faceless," he said. "We need a process that forces judges to be accountable, and I am not talking about simply making a report to parliament. It is the inner strength of judges that alone can save the judiciary. We need a mandated procedure for judicial appointments."

Such a process would seek to take politicos out of the equation. Currently, the chief justice and the appeal court justices are chosen by the prime minister, after consultation with the leader of the opposition. Other judges - there can be as many as 12 on the Supreme Court - are selected by the Judicial and Legal Service Commission.

The commission is chaired by the chief justice and includes another judge of his choosing, as well as the chairman of the Public Service Commission and two members picked by the prime minister after consultation with the leader of the opposition. This archaic arrangement gives far too much power to the executive and stands in stark contrast to the current state of affairs in the United Kingdom.

The British chief justice is now appointed by a panel convened by the Judicial Appointments Commission, a genuinely independent body that selects judges on merit from the widest range of eligible candidates. The 15 commissioners are drawn from the judiciary, the legal profession and the lay public, and their procedures for selecting judges are public and transparent. Politicians are excluded from the process.

But Glinton says Bahamians are "uneasy" about taking responsibility for their own affairs: "We have 1,000 lawyers yet we are still beating about the Eastern Caribbean for judges. We should not leave our most cherished possessions in the hands of people who are here today and gone tomorrow. And if we remain silent on this there will be no change and the country will continue to deteriorate."

He added that "Judicial independence depends ultimately on how judges repel any attempts against this independence. The truth of the matter is that judges in the Bahamas are too often perceived as compliant and acquiescent in their own abuse, even to the point of tolerating in their midst some who are legally and morally unsuitable for the third branch of government."

Such matters are critical to the rule of law, he said. Political thinkers have long argued that checks and balances between separate branches of government are vital to prevent abuse of power, a view shared by John Marshall - the great 19th century jurist who defined the American legal system. It was Marshall who declared that "the only security against the abuse of power is found in the structure of government itself."

According to Glinton, a truly independent judiciary can only be achieved through accountability, and judges should be subject to public scrutiny in the Bahamas as they are in the United States. And it is important to recruit Bahamian judges in order to prevent the judiciary from becoming a non-Bahamian "ward" of the other branches of government.

"Accountability requires openness of process, beginning with a mandated procedure for carrying out selections," he said. "We have judges but no judicial system. There is a lack of leadership - the chief justice should be out on a limb making the case. There are few Bahamian judges today because we don't respect our judges."

Although couched in academic language, there is much wisdom in what Glinton had to say. And we ignore these issues at our peril. I can think of three possible reasons for the mind-numbing inertia of the political class in this context. One, they don't understand. Two, they understand but want to keep things as they are because it suits them. Three, they understand and want to make changes but lack the political cover or will to do so.

Perhaps one lesson from history will suffice to encourage Bahamian judges and lawyers to step up to the plate. In 1832 Chief Justice Marshall ruled in favour of sovereignty for the Cherokee Indians, but President Andrew Jackson simply ignored the decision and proceeded to ethnically cleanse Indians from the American states east of the Mississippi.

Yet despite this massive - and tragic - system failure in a new nation, Marshall was able to establish the Supreme Court''s powers of judicial review as the final arbiter of the constitution. And today he is credited with cementing the judiciary as an influential branch of government.

The onus is on Bahamian lawyers to take up the challenge here and ensure an independent and accountable judiciary. Are they up to the task?

Cable Bahamas and Compulsory LicensingWhen we told critics of Cable Bahamas to put up or shut up last week, some readers pointed to the company's supposed theft of programming from American providers. But this is really a bilateral trade dispute.

It all dates back to 1995 when CBL began servicing households on New Providence. Cable Bahamas is on one side of the copyright issue and the US-based Television Association of Programmers - an industry group representing more than 30 US pay television channels in the region - is on the other. But the real argument is between the Bahamian and American governments.

The dispute arose because CBL couldn't get the commercial rights to some 60 per cent of its US-originated programming. Those rights were simply not available to a tiny English-speaking territory in this largely Spanish-speaking region because the copyright owners couldn't be bothered to negotiate them. But over the years the programming that is still in dispute has dwindled to about 7 per cent of the total - mostly HBO movies.

This circumstance must be viewed in the context of the market that existed during the mid-1990s, when practically every Bahamian household had a satellite dish that was already pirating American signals. This was also the case in other countries that could receive US satellite signals.

In an effort to regularise the market, the Bahamas passed a copyright law in 1998 which provided for compulsory licensing of TV signals under international convention. This meant that the content could be re-transmitted by an operator licensed within the Bahamas without the consent of the foreign-based copyright owner. However, the content provider retained the right to be paid for that use.

The 1998 law created a copyright royalty tribunal (currently composed of lawyer Kirk Seymour, artist Stan Burnside and accountant James Gomez) to deal with the compulsory licensing issue. This tribunal collects royalties in order to make appropriate payments to copyright owners when there are claims. And over the years, CBL says it has contributed some $70 million to this fund.

The dispute came to a head in 2000 when the Bahamas reached an agreement with the US to correct "deficiencies" in the copyright law. Of particular concern to the programmers were provisions for the compulsory licensing of premium, encrypted cable television programming in the Bahamas. They also complained about Inadequate compensation rates for re-transmissions to hotels and other commercial enterprises.

Under this bilateral agreement, our government committed to make the cable compulsory license more palatable to the programmers. It took four years to enact these changes, which led to the Bahamas being removed from a US watch list. But the amendments were never actually implemented and the programmers continue to urge the US government to support their cause.

"Restrictive legislation by the Bahamian government, coupled with a possible domino effect that could occur in other Caribbean countries, could result in a loss of approximately $250-$270 million in annual programming revenue for US pay television companies," the programmers argued earlier this year.

"We strongly believe the Bahamas merits (a) high level of engagement due to its egregious lack of protection of US intellectual property, and specifically for its actions to institutionalize the theft of US films and pay television programming through itscompulsory license."

If the amendments to the copyright act were to be implemented, they would limit the scope of the compulsory license to the "unaltered re-transmission of free, over-the-air broadcast signals and would not permit re-transmission of encrypted signals or extend to re-transmission over the Internet."

Both the Christie and Ingraham administrations have refused to implement the 2004 amendments until the commercial needs of Cable Bahamas for English-speaking content are met. As part of the 2000 agreement, the US promised to “encourage” American rightholders to negotiate these licenses, and the US has so far not acceded to the programmers' lobbying to put the Bahamas back on the watch list.

According to a CBL spokesman, "we will buy the commercial rights if the programmers will sell, but Caribbean demographics are mostly Spanish so rights are often only available for Spanish programming. To operate successfully we need English language programming, and we were the first in the region to seek those rights. Over time we have obtained most of them."

The plain fact is that compulsory licensing is 100 per cent legal in the Bahamas, and it is a practice that is internationally accepted. Cable Bahamas attempts to deal with this issue every year in Washington, but as the spokesman put it: "we are just a pimple on the backside of the industry."

It is also worth noting that CBLs main competitor - Direct TV satellite television - is in the same position locally and has thousands of Bahamian subscribers. Cable's pricing for subscriber services matches that of Direct TV.